SYSTEM FEDERATION NO. 6, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Firemen & Oilers)
The petitioning organization while progressing this claim on the property failed to prove that the discipline assessed in the instant case was arbitrary or capricious. The record contains evidence of probative value sufficient to sustain the minor disciplinary action taken in claimant's case. What petitioner would have this Board do is substitute its judgment for that of the Carrier. This the Board will not do. Second Division Awards 4614 (Williams), 5183 (Harwood), and 5400 (Kane), among others.
In conclusion, the carrier submits that the official letter of reprimand assessed claimant's personal record was supported by the evidence adduced at the investigation. The discipline in this case was lenient and in keeping with Carrier's managerial prerogative. This discipline should not be disturbed. The Carrier respectfully requests that this claim be denied.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant, J. O. Garcia, was notified by Carrier that a formal investigation would be held in the Superintendent's Office Conference Room on June 6, 1969 "to develop facts, discover the cause, determine your responsibility, if any, in connection with Engine 1265 and Engine 199, striking fork lift truck No. 623 at the Diesel Pit, Silvis, Illinois, at approximately 11:45 A. M., May 29, 1969, during tour of duty resulting in personal injury to Mr. J. O. Garcia and damage to fork lift truck No. 623 and violation of Operating Rules, Safety Rules, and/or Special Instructions, if any, in connection therewith."
Claimant was assessed with an official Letter of Reprimand, from Carrier's Superintendent, which reads as follows:
Claimant was working as a laborer at the wash rack at the Diesel Pit; Silvis, Illinois on the date in question. Claimant was unloading cleaner by hand from a fork lift truck at the wash rack, after bringing the washing compound to the wash rack on the fork lift. Claimant testified that. his fork lift truck was not in the clear of the middle track when he first saw two Diesel engines headed east on the middle track. Claimant further testified that he immediately gave a stop sign to the Hostler operating the Diesels and stopped them before they reached him at about 4 feet from the beginning of the wash rack, with claimant's fork lift truck at this time located at about the middle of the wash rack. Claimant testified that he then backed his fork lift truck west toward the Diesels in order to clear the middle track, and when his lift truck was about 2 feet from being in the clear of the middle track the Diesels started up again and hit the cab of the fork lift truck, pinning claimant between the wheel and the cab. Claimant further testified that 4 light poles are located between the middle track and the wash rack track, requiring a fork lift truck to be driven toward the middle track. in orde3, to pass said light poles, and thus fouling; the middle track in the process. This latter statement of claimant was confirmed b5 Carrier's Assistant Master Mechanic, E. M. Dobbels. In addition, Carrier's Laboi Foreman, J. E. Merrill, testified that an additional obstrutttion. between the middle ten,.1- anal the -kvash rncl- that woilrl Hnde,· z fork lift
truck from clearing the middle track, is a concrete filler approximately 30 inches square and 15 inches wide, as well as a concrete curb 6 inches wide and 8 inches high and parallel to the wash track.
Hostler Helper W. Hoffman testified that he didn't witness the accident; that his duties are to make sure that the Hostler is in the clear and able to move the engine safely by throwing switches and giving him signals; that he wasn't in the cab of the Diesel or saw the accident because the Hostler had ordered him off to line up the other switches for engines that the Hostler was going to bring in from the wash track.
Hostler M. S. O'Klock testified that he was taking an engine down the middle track when he was stopped by claimant because his fork lift truck was parked in the foul; that claimant was staying in the clear, so he whistled off, turned on the bell, and started down the middle track when he heard something hit the side of the engine and stopped; that claimant turned his truck from the north to the east and started backing down and was staying in the clear while clearing the middle track.
It appears .from the record that claimant did comply with Safety Rule 19 by acquainting himself as to the location of obstructions where clearances are close and he did watch for cars or engines on adjacent tracks. This is clearly seen when he flagged down the Diesel in question when he saw it approaching his fork lift truck that was fouling the middle track at the time.
In. regard to an alleged violation of paragraph (f) of Safety Rule 191, which provides: "Look in both directions before driving across tracks, and never drive closely in front of moving trains, engines or cars.", it is seen that claimant did not drive across a track and did not drive closely in front of a moving engine. !.Emphasis ours.) Claimant stopped Hostler O'Klock for the sole purpose of permitting him to move his fork lift truck from fouling the middle track at. any point. Hostler O'Klock, without justification, took it upon himself to move his Diesel locomotive without first ascertaining whether claimant had moved his fork lift truck completely in the clear of the middle track. This action on the part of Mr. O'Klock was dangerous indeed, more so because his Hostler Helper was off doing other duties at Mr. O'Klock's direction. Mr. O'Klock apparently assumed that once he saw claimant in the clear, clearing the middle track, claimant would remain in the clear, an assumption extremely hazardous under the circumstances then and there existing.
Therefore, this Board finds that Carrier failed to meet its burden of proving by substantial evidence that claimant was guilty of violating the aforesaid safety rules, and we must thus sustain the claim.